Case: 22-50630 Document: 00516633824 Page: 1 Date Filed: 02/03/2023

United States Court of Appeals for the Fifth Circuit ____________ United States Court of Appeals Fifth Circuit No. 22-50630 Summary Calendar FILED ____________ February 3, 2023 Lyle W. Cayce United States of America, Clerk Plaintiff—Appellee, versus Gilberto Marquez-Calzadilla, Defendant—Appellant. ______________________________ Appeal from the United States District Court for the Western District of Texas USDC No. 4:22-CR-99-1 ______________________________ Before Davis, Smith, and Douglas, Circuit Judges.

Per Curiam: * Gilberto Marquez-Calzadilla appeals his sentence for illegal reentry in violation of 8 U.S.C. § 1326(a) and (b)(2). For the first time on appeal, he contends that his sentence is unconstitutional because the district court enhanced his sentence under § 1326(b) based on facts that were neither alleged in the indictment nor found by a jury beyond a reasonable doubt.

_____________________ * This opinion is not designated for publication. See 5th Cir. R. 47.5.

Case: 22-50630 Document: 00516633824 Page: 2 Date Filed: 02/03/2023

No. 22-50630

While he acknowledges this argument is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224 (1998), he nevertheless seeks to preserve it for possible Supreme Court review. As such, Marquez-Calzadilla has filed an unopposed motion for summary disposition. See United State v. Pervis, 937 F.3d 546, 553-54 (5th Cir. 2019).

Subsequent Supreme Court decisions such as Alleyne v. United States, 570 U.S. 99 (2013), and Apprendi v. New Jersey, 530 U.S. 466 (2000), did not overrule Almendarez-Torres. See United States v. Pervis, 937 F.3d 546, 553-54 (5th Cir. 2019). Thus, Marquez-Calzadilla is correct that his argument is foreclosed, and summary disposition is appropriate. See Groendyke Transp., Inc. v. Davis, 406 F.2d 1158, 1162 (5th Cir. 1969).

Marquez-Calzadilla’s motion is GRANTED, and the district court’s judgment is AFFIRMED.